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People v. Mitchell

OCTOBER 24, 1968.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HERMAN MITCHELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgments affirmed. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Defendant appeals from a conviction for the crimes of robbery and aggravated battery. The trial was by jury and the court imposed a sentence of not less than 10 nor more than 20 years for the crime of robbery, and a concurrent sentence of 5 to 10 years for the crime of aggravated battery.

The defendant contends that his conviction rests on evidence which patently discloses reasonable doubt as to his guilt of the crimes with which he was charged; that defendant's sentence of 10 to 20 years was excessive and should be reduced by this court, and that the sentence of 5 to 10 years for aggravated battery should be set aside because both the robbery and aggravated battery charges arose out of the same occurrence.

The evidence showed the following: On August 28, 1965, Mr. Pedar Johnson received three visitors from out of town. On that evening the foursome went to a lounge in Chicago where they drank some beer and then left to return to Mr. Johnson's home. They went to a bus stop at the corner of Blackhawk and Larrabee. After standing on that corner for a few minutes the four were approached by a young man who asked for bus fare. One of the men in the Johnson group gave the youth some change but when the youth asked for return bus fare he was refused and he departed. After a short time, as a bus was approaching, Johnson and his companions found themselves surrounded by a group of young men, one of whom was the person who had asked for money. Johnson started to turn to his left and as he did so he was struck squarely on the chin by an individual identified as Herman Mitchell, the defendant. John Webster, one of Johnson's associates, was picked up bodily from behind and carried around the corner and held down while they took his wallet and watch. He struggled a little and then saw someone holding a knife and thereafter he did not move. After Johnson had been knocked to the pavement he was bewildered and stunned. Several seconds later Johnson got up, was hit again and knocked to the pavement. He then attempted to get up a second time, was hit and lost consciousness. Herman Mitchell, the defendant, was identified by Johnson as the man who had struck him. Johnson was taken to the Cook County Hospital. Approximately $10 which he had on his person was taken. Mr. Johnson's testimony was that he had a total of three beers during that evening. Johnson sustained a basal skull fracture and a fractured eardrum.

Peter Warren, who was one of the Johnson group, testified that when the youths surrounded the Johnson group that in addition to the one who had first asked them for the bus fare there were five or six other youths surrounding them. Warren's watch was stolen by the youth who obtained the bus fare. He was not sure whether that youth was the one who took his wallet.

Isaac Davis, a witness called by the State, testified that he saw the defendant, Mitchell, whom he had known for about a year, hit Johnson and that Johnson fell from the blow.

Eloise Hunt, another State witness, testified that she lived at 1486 North Larrabee and that at about 11:30 p.m. on August 28, 1965, she looked out the window and saw Herman Mitchell, the defendant, beating, stomping and kicking the man. She was looking from her window which was directly across the street from the corner on which the incident took place. On cross-examination it was brought out that the witness' mother had been charged with the crime of murder and she knew that Herman Mitchell's mother was going to testify at the trial of the witness' mother. When asked if her mother was upset at that she said, "No, she wasn't because after they got out they got drinks and things together and they never did discuss it much."

Robert Sherman, a patrolman of the Chicago Police Department, went to the corner of Blackhawk and Larrabee in response to a call and found several persons and "a victim lying on the ground; unconscious." He rushed the victim, Pedar Johnson, to the hospital.

Two other police officers testified to making the arrest of the defendant in his home at 3:00 a.m. on August 29, 1965.

The defendant testified that he was home playing records on the evening of August 28, 1965, and that his friend, Eunice Smith, came to his house. At about 9:00 p.m. he walked Eunice home and she informed him she was pregnant with his child and asked if Mitchell intended to marry her. Mitchell answered that he did not know and that Eunice Smith stated that if he "didn't marry her and help take care of the kid that she was going to have me (Mitchell) put away in jail." Mitchell further testified that he left Eunice Smith's home shortly after 9:00 p.m., and when he arrived at his home he ate a sandwich. He intended to go out but his stomach hurt and he went to sleep. The next thing he knew he was arrested by the police for robbery.

Officer Frank S. Blasch testified that when the police awakened Mitchell and questioned him as to his whereabouts on the evening of August 28, 1965, Mitchell said that he had taken his girl friend to the movies. Blasch also testified that the witnesses to the occurrence had been located by a house to house canvass of the neighborhood and that Isaac Davis, one of the State's witnesses, lived approximately five blocks away from the intersection of Blackhawk and Larrabee.

Bertha Hunt, an additional witness for the State, testified that she lived at 1486 North Larrabee, on the evening of the occurrence. She had known the defendant for about ten years. She lived on the third floor and her daughter called her to the window. She saw a cluster of people below, and also saw Herman Mitchell beating a white man. Mitchell was standing over the white man, kicking him, and then another man pulled him across the street. She was asked whether she knew the defendant's mother. When she was asked how she and the defendant's mother got along she said, "We got along fine," but she did not get along with the defendant's mother now because she came by and threatened the witness' daughter because she came here to court. The witness further testified that she had been charged with murder and that Mrs. Mitchell testified against her, but that she was not angry with Mrs. Mitchell nor did she threaten Mrs. Mitchell or her son. The witness was found not guilty of the murder.

[1-4] The first contention of the defendant is that the State failed to prove beyond a reasonable doubt the guilt of the defendant of the crimes with which he was charged. The defendant argues that of nine witnesses who testified for the State four did not identify the defendant. It is the defendant's contention that, while five of the State's witnesses identified the defendant as the man who beat Pedar Johnson, the evidence of these witnesses should be given close scrutiny before being accepted as proof beyond a reasonable doubt that the defendant was in fact the man involved in the altercation with Johnson. The defendant contends that Pedar Johnson was standing on a corner illuminated only by streetlights; that he and his party were surrounded by the group; that he turned his head and was struck in the jaw and knocked to the pavement; that after several blows he was rendered unconscious. The defendant argues that the whole episode lasted three to five seconds, and that it is very doubtful that a man who was being physically attacked could in that short period have the opportunity to study the face of his attacker so as to identify him later. There were four other witnesses who identified Mitchell positively, and the defendant argues that their testimony should be suspect. Each of the witnesses was subjected to cross-examination by defense counsel. The jury, sitting as trier of facts, was confronted with a clear conflict in the evidence which it was their function to decide. People v. Robinson, 30 Ill.2d 437, 197 N.E.2d 45. The sufficiency of the identification of the defendant is always a question for the jury and will not lightly be set aside on appeal. People v. Clark, 28 Ill.2d 423, 192 N.E.2d 851. We do not believe that the identification of the defendant was in any way unsatisfactory, nor can we say that the testimony of the State's witnesses was not so positive as to identification as to warrant the setting aside of the jury's verdict. The evidence as a whole was amply sufficient to support the conviction of the defendant on both charges beyond any reasonable doubt.

The defendant secondly contends that his sentence of 10 to 20 years for robbery was excessive and should be reduced.

The defendant cites the case of People v. Lillie, 79 Ill. App.2d 174, 223 N.E.2d 716, where ...


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